April 2006, Page 56

Who Said Voir Dire Wasn't Important?
By Dennis G. Terez

Judges need to let lawyers be advocates. But because of the way some district judges interpret Rule 24(a) of the Federal Rules of Criminal Procedure, they are not letting that happen. Let me illustrate the problem, and then propose several practical steps in the right direction.

One note before we begin our discussion. While the problem set forth here focuses on federal court where district judges routinely conduct voir dire alone, the problem is by no means limited to federal court. Moreover, the pitfalls and strategies to follow apply equally to federal and state court.

Rule 24(a) says that the “court may examine prospective jurors or may permit the attorneys for the parties to do so.” Seeming to acknowledge that they went down the wrong path with this wording, the rule’s drafters added that if the court examines the jurors, “it must permit the attorneys for the parties to: (A) ask further questions that the court considers proper; or (B) submit further questions that the court may ask if it considers them proper.” What does this mean in everyday practice? Typically one of three scenarios, none of which is good for lawyers who want to do their job.

First, the court does not allow the attorneys to examine the prospective jurors. This happens frequently in federal court. Because judges want to speed along their trial calendars, they deny counsel’s request to take part in the voir dire by questioning the prospective jurors themselves.

Second, the court allows the parties to submit written questions, as the rule requires if the court goes ahead and examines prospective jurors. This, of course, is like predicting what the weather will be tomorrow — and not knowing even what country you’re in when making the prediction. How can an attorney possibly know in advance, and then capture in writing, what types of questions should be posed to answers he or she has not yet heard but can only anticipate?

Third, the court allows for a few minutes of direct participation by counsel in the voir dire process. And by this, I mean a few minutes. By the time a few questions are out, the judge is nastily looking at the clock, and the prospective jurors quickly get the signal that the judge is mad at the lawyer for taking up the court’s time by merely asking questions of the prospective jurors.

I am not suggesting that unlimited voir dire by counsel is wise or efficient. It is neither. But direct participation by counsel in the voir dire process for some reasonable period of time is vital in the vast majority of cases if the fairness of the process is to be guaranteed. This issue of procedural fairness is particularly important at the trial’s outset when the ultimate decision-makers are being selected.

Three Examples
Let me provide three examples where direct participation by counsel in the voir dire process can dramatically enhance the fairness of the trial.

The first example is an all-too-familiar drug trafficking case under 21 U.S.C. § 841 or a case involving the possession of a firearm by a prohibited person under 18 U.S.C. § 922(g). These cases are a staple of the federal criminal justice system. Yet in too many jurisdictions, lawyers are routinely denied the opportunity to conduct voir dire. Here’s how it typically goes:
Court: Do any of you own or carry a gun?

No one usually raises their hand.

Court: Does anyone in your family own or carry a gun?
Again, no one usually raises their hand. If they do, it’s one of those half-baked gestures that we used to see in grade school. I kind of know the answer but I am really not sure, and please don’t call on me to see if I really know what I’m talking about.

Court: Do you know if any of your relatives or close friends own or carry a gun?

From time to time, some prospective juror will brag about how his or her uncle is a cop, or will make mention of a son or daughter in the armed forces who routinely uses a weapon. That’s about as far as that line of questioning goes.

Drug Cases
It’s far worse in drug cases. Here’s how it usually unfolds in those cases:

Court: Do any of you have a drug or alcohol problem now, or did you have a drug or alcohol problem in the past?

No one in their right mind answers. From time to time, the judge will sugar-coat this question a bit by asking if any prospective juror has recently been treated or received counseling for any addiction. The answer is the same.

Court: Does anyone in your family have a drug or alcohol problem currently or in the past?

Again, for fear that their fellow jurors will look upon them as being derelict in their duties as a parent or spouse, only a few brave, honest souls will raise their hands. The voir dire in these instances is usually conducted at sidebar. For this type of question, many prospective jurors are not even looking at the judge — and the judge, by the way, is often not looking at them either, but is instead reading the questions off a sheet of paper. The prospective jurors are by this point usually looking down at their shoes or at the defendant wondering just how bad his drug problem really is.

Court: Do any of your relatives or close friends have a drug problem?

You might get a few raised hands in response. A prospective juror may think it’s a quick way to vent about the obnoxious alcoholic relative who upsets the holidays every year. But no one wants to go too far down this road, for fear that he or she could be viewed as an accessory to the crime.

The only way you can begin to get into the head of a prospective juror in cases such as these is through a round-about way. It works every time, but it takes some time to accomplish. The blunt questions that judges so often ask don’t open the door. They have the opposite effect. But try asking the prospective jurors how they feel about the use of drugs. Ask them what do they think about giving individuals in this country the right to carry guns. Test them to see if they believe there is too much gun violence in America. Ask them what their views are on gun control. Ask them if they ever drank too much, or knew someone who did? And all of a sudden, you have more hands up than you can possibly address in five or ten minutes.

The second example is a case involving child pornography. It defies logic to think that a judge, who often is trying to keep a certain distance from the prospective jurors, can develop a meaningful rapport with those same individuals when asking even the most basic voir dire questions in this kind of case.

Expected from the bench, of course, are questions like: Will you be able to put aside your emotions when viewing graphic depictions of minors in sexually explicit poses? Will your sensitivities to such materials prevent you from weighing the evidence fairly? Do your religious beliefs get in the way of weighing the evidence, even if some of it includes graphic depictions of sexual conduct?

Likely Answers
But those questions only scratch the surface, and for most of them we can anticipate beforehand what the answers are likely to be. And we again have the eye thing going on: the judge is looking down reading the questions, and the jurors are looking down at their shoes. In short, this process doesn’t tell us much about the prospective jurors. We fail to achieve the basic aim of voir dire.

Here is the challenge for the defense lawyer who needs to ask sufficiently probing questions about sensitive, personal areas without offending a prospective juror’s sensibilities. The defense lawyer walks the fine line of acknowledging the offensive nature of the evidence but at the same time teaching prospective jurors that even horrific evidence does not mean an automatic guilty verdict. The creative advocate might try comparisons with other cases where terribly offensive evidence is admitted.

How about teaching the prospective jurors by comparing the case to a case involving a terrible accident with gruesome photographs of injuries? Or even comparing the case to one involving murder? Every prospective juror can relate to television shows and movies where even in murder cases with horribly upsetting evidence, the jury still acquits the defendant.

The lawyer as teacher might also use voir dire in this instance to test the prospective jurors’ understanding of the rules of evidence and the importance of weighing all the evidence in considering the case. Questions might also be delicately posed about prior problems of abuse in their own families. Or test the constitutional waters for them. How do they feel about the First Amendment? How do they distinguish for themselves between acceptable and unacceptable materials? How do they feel about commercially distributed adult pornography? What do they think about the tool of the Internet? Do they think it is used too often for nefarious purposes? For spreading pornography? Do they think digital images can be easily altered? What do they know about digital photography?

Only the lawyer can meaningfully wander down these avenues to probe the prospective jurors’ views on these delicate issues. It is the lawyer, not the judge, who has at the beginning of a trial a sufficiently strong handle on the evidence needed to formulate these questions and then to follow them up with further questions.

Submitting written questions in this situation falls short of the mark by a considerable margin. Would we be able to script out in advance how we would discuss these topics even within the privacy of our own homes? It is the spontaneity of questions and answers, indeed almost like a conversation, that makes this type of voir dire meaningful — and allows the probing of prospective jurors on the most sensitive of topics.

The third example of the importance of direct lawyer participation in voir dire highlights the lawyer as teacher. All standard jury instructions teach the jury that the indictment itself is not evidence, and that it carries no weight at all as to the guilt or innocence of the defendant. But try testing the sufficiency of that instruction through voir dire. Hold up the indictment and ask the prospective jurors if they think that document means something as to the guilt or innocence of the defendant. In any of the numerous cases where I have tried this (because the judge was good enough to allow me to conduct at least some of the voir dire), I have had roughly two-thirds of the prospective jurors raise their hands in response. And the response is usually the defense’s worst nightmare. A typical response: “Well, it must mean your client did it, because otherwise we wouldn’t all be here.” Or: “It must mean the defendant did something wrong. Otherwise the government would never have filed the indictment.”

Lawyer As Teacher
Now comes the moment of blending the lawyer as advocate with the lawyer as teacher. Shift the direction of the voir dire to ask the prospective jurors if they know how a grand jury is constituted, whether they know who is allowed to be in the grand jury room during a session, whether they know a judge is never present (normally the biggest surprise for prospective jurors), and whether they know that the burden of persuasion for obtaining an indictment is the lowest on the pecking order of standards in our justice system. The possibilities for sizing up prospective jurors on that most fundamental issue in a criminal case — what is the meaning, if any, of the charging document — are limited only by the lawyer’s creativity. Or by the judge who chooses not to allow lawyers to conduct the voir dire.

Short of changing Rule 24(a), there are some steps worth taking to maximize the lawyer’s role in voir dire. File a motion in addition to proposed voir dire questions by which you ask the court for permission to conduct voir dire.

There are at least three ways to tailor the motion. Point out the special sensitivities involved in the case at hand that require direct participation by the lawyers who know the evidence best. Point out to the judge that state courts allow lawyers to conduct voir dire in such cases, and their dockets haven’t ground to a halt. Illustrate for the court the difficulty if not impossibility of drafting questions in advance that adequately address the parties’ concerns in voir dire.

Ask the judge to circulate a jury questionnaire. In fact, propose a questionnaire of your own to supplement the court’s standard form if one is used in use in your jurisdiction. Answers to questionnaires are one of the best sources of information to support direct lawyer participation in conducting voir dire.

When a sensitive issue is reached during voir dire that calls for a sidebar discussion with the prospective juror, use that opportunity to renew your request to conduct voir dire. Explain to the court that the time spent at sidebar conferences with prospective jurors may have been reduced if the lawyers had been able to conduct voir dire from the start.

Finally, if you are facing a judge who has a penchant for pushing trials along at the speed of light, propose some reasonable time limits with your request for direct participation in voir dire. Judges are legitimately concerned about lawyer grandstanding during voir dire. It is, after all, one of those rare instances at trial when the lawyers get to address the (prospective) jurors directly. Head off that criticism by proposing limits on time or subject areas for the voir dire conducted by the lawyers.

Sensitizing the bench of the importance of voir dire as part of a lawyer’s job at trial may be all that is achieved in this effort. But that alone may be valuable for the next case and the next one after that.


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